HUNTINGTON – Three environmental groups have filed federal lawsuits against three coal companies, claiming the runoff from their mountaintop removal mining sites have polluted state waterways.
The lawsuits were filed March 13 in the U.S. District Court for the Southern District of West Virginia in Huntington by Ohio Valley Environmental Coalition, the Sierra Club and West Virginia Highlands Conservancy.
In two of the suits, the groups claim Alex Energy Inc. and Fola Coal Company LLC of contaminated water in tributaries of Twentymile Creek with sulfate and other harmful chemicals.
The third suit claims Consol of Kentucky’s Peg Fork mine discharges unlawful quantities of selenium into nearby streams, which violates the Clean Water Act.
Selenium is a naturally occurring element that surface mining can release into waterways. In humans, high-level exposure can damage the kidneys, liver and central nervous and circulatory systems, the groups say.
The claims against Alex and Fola are based on the same legal theory the two groups used to obtain a 2012 settlement against Fola, requiring it to cleanup another allegedly biologically impaired tributary — Boardtree Branch — in the Twentymile Creek watershed.
In both cases, the groups contend that the mining companies have violated West Virginia’s “narrative” water quality standards, which set general criteria for water quality, rather than “numeric” water quality standards, which set limits on the concentration of specific pollutants in water.
“Amazingly, at the same time that data show more and more streams impaired by coal mining, WVDEP is seeking to reduce the number of streams on the state’s impaired streams list,” said Jim Sconyers, Chapter Chair of the West Virginia Sierra Club. “Rather than forcing the mining companies to clean up the impaired streams, WVDEP is trying to redefine the meaning of impairment administratively so that it no longer exists while the EPA is taking a ‘cross your fingers and hope’ approach to mining pollution.”
Sconyers said groups like his have to do WVDEP’s job. A recent ruling by the Kanawha County Circuit Court ruled against the Sierra Club's challenge of a mining permit. The group had raised concerns over the streams around the mine.
“We can't allow these companies to keep poisoning our streams,” he said.
Cindy Rank of the West Virginia Highlands Conservancy said if mining in these areas is to continue, it must be done in a manner that does not further degrade the water in these streams
“It is important for people who live by and enjoy these streams and for the future of the state of West Virginia that greater care must be afforded to the waters we leave for our children and our children’s children,” Rank said.
A bill that is currently making its way through the state Legislature would allow the state Department of Environmental Protection to raise the allowable levels of selenium in lakes and streams and would also order a study to determine acceptable levels of selenium specific to the state, according to a report by The Associated Press.
The bill said the federal Environmental Protection Agency has been considering revising the selenium standards for several years, which raises questions about the usefulness of the current standards.
The EPA would have to approve the changes.
The groups, which have spent years suing coal companies over water pollution, also have threatened federal regulators with legal action if they do not rein in state regulators, the AP report says.
Jim Hecker at Public Justice in Washington, D.C. and Joe Lovett and Derek Teaney of Appalachian Mountain Advocates in Lewisburg are representing the plaintiffs against Alex and Fola. Lovett and Teaney also represent the plaintiffs in the suit against Consol.
The groups are seeking the courts to require the companies to abide by pollution regulations or the pay civil penalties up to $37,500 per day for each violation.
U.S. District Court for the Southern District of West Virginia in Huntington case numbers: 2:2013-cv-05005, 2:2013-cv-05006, 2:2013-cv-05008